Meera Vashisht: Remembering Just Enough to Stay Home
Broken Promises and the Indian Health Service
The relationship between Native American peoples and the United States Government’s health care policies has been problematic since its inception, with many unresolved issues continuing to present day. Without question, the Federal Government has a legal obligation and responsibility to provide care for Native peoples following the forced relocations and displacement of indigenous populations. Unfortunately, government initiated programs have continually fallen short of agreed-upon promises.This study provides a short analysis of the historical founding of what is today known as the Indian Health Service (IHS), as well as the Congressional acts, laws, treaties, and reasonings behind Native health care initiatives, plus how these plans have largely failed, and continue to fail, indigenous communities. Presently, Native populations have been heavily impacted by inadequate access to a fully comprehensive health care plan, and inequities are still being faced by Native Americans who desperately rely upon government sanctioned health facilities from the IHS, as further evidenced during the most recent Coronavirus outbreak.
The Indian Health Service’s origins are in the US War Department. The earliest recorded health care provisions for Native communities came about in 1824 out of an initial concern for newly formed European settlements, forts, and military installations. Because Native communities at that time were largely controlled by the US military, any health sanctions, concerns, or initiatives were largely left to the US War Department. Ironically, the predominant concern for providing medical treatment to Native Americans was first initiated to prevent the spread of disease for nearby White populations and not for the sole benefit of tribal communities.(1)
In the Indian Vaccination Act of 1832, Congress implemented its first forcibly mandated smallpox vaccine on Native communities in an effort to contain the disease and primarily protect White populations (2) Seventeen years later, the War Department’s “Bureau of Indian Affairs” (BIA) office was moved to a newly established Department of the Interior.(3) It was not until over a century later that Congress finally passed what became known as the “Transfer Act,” delegating Native health care provisions to a new department called the “Division of Indian Health,” later to be known as the “Indian Health Service,” which then became a division of the Public Health Service. Based in Rockville, Maryland, the IHS was originally created to carry out the government’s treaty obligations to provide health care services to eligible Native Americans. (4) Long before that, however, tribes had already agreed to exchange their land and natural resources for health care and other services from the United States Government as part of the Fort Laramie Treaty of 1868.(5)
In discussing the IHS, it is important to note that throughout history, US citizens have not been able to sue their state due to what is known as “sovereign immunity.”(6) In 1946, a federal statute was put in place called the Federal Tort Claims Act, where private citizens were finally able to sue (in a federal court) any individual working for a governmental agency and acting on behalf of the United States. The unfortunate downside of the Federal Tort Claims Act is that it almost completely prohibits Natives (and other US citizens) from suing federal government “agencies,” making it nearly impossible to seek justice and/or compensation for substandard care during life-threatening situations. It has even been argued that the Federal Tort Claims Act can function as another type of “malpractice insurance” for IHS providers, and largely gives no recourse to Native patients injured at IHS clinics and facilities. Moreover, suing a federal government entity for personal injury is difficult and highly complex, much more so than simply suing a private citizen or corporation, especially since under sovereign immunity, no one is allowed to sue a government entity without its own permission.
Making this entire situation more dismal is the complexity of the Federal Tort Claims Act, which only allows certain types of suits against federal employees and their government bodies. The first issue that one has to face in suing a government entity like the IHS is determining whether or not the suit falls under the Federal Tort Claims Act in the first place. If a suit is not specifically falling under it, the doctrine of sovereign immunity will usually keep anyone seeking justice from being able to bring a suit. Yet, even if the Federal Tort Claims Act gives compensation for any injuries or deaths incurred by the negligent actions of an IHS employee, sovereign immunity still states that the laws of the state where the negligence occurred have to permit the claim. Therefore, an administrative claim has to be made. Making matters even worse, that claim must be filed with the federal agency where the employee who caused the misconduct was working, so in the case of suing an IHS provider, that must be taken up with the IHS itself. Each federal agency, like the IHS, has a form used for this. Since everything goes through the agency that is largely responsible for the misconduct, this becomes an obvious concern, and worse still, that claim must include not only full details of the negligence, but must be filed within two years of the complaint. Complicating this even further is that certain states have a smaller time frame for their statute of limitations for personal injuries than the two-year period cited in the Federal Tort Claims Act, so more often than not, it is far easier to not even bother with such a legal entanglement that is most likely not going in the patient’s favor anyway. (7)
Dismally, these narratives remain as of 2021. In fact, federal prisoners receive better health care on average than Native Americans who utilize the IHS, and since Congress has continually underfunded the IHS, these clinics are being forced to limit what they can provide to Native populations. Native Americans still have a life expectancy that is, at minimum, four years less than the rest of the US population. US indigenous populations are still dying from preventable diseases on reservations, tribal lands, and at IHS facilities.(8) Staffing and personnel for the IHS is still very problematic, especially in the most underserved and isolated locations, and these shortages, as well as initiatives for preventable diseases, cost money. Enough funding to cover these multiple issues is not being allocated to the IHS. Furthermore, greater initiatives need to be in place to help fund the educations of Natives wanting to practice in health care professions, since such individuals would be far more vested in serving their own communities than non-Native medical staff, and it is clear that all IHS facilities need more health care professionals.
In states with Indian Health Service hospitals, the death rates for preventable diseases, like alcohol-related illnesses, diabetes, and liver disease, are three to five times higher for Native Americans, than for all other races combined. Tribal elders, who have underlying conditions like diabetes and heart disease, and many critically ill patients are often transferred elsewhere during highly critical times because the IHS health care system is often not equipped to help them.(9) Moreover, many hospitals serving Native communities lack the medical expertise to even treat patients with the severest cases. On some reservations, people living in remote areas without electricity or running water, and where it is not uncommon for extended family members to be living together in one dwelling, often travel miles to get to IHS facilities and hospitals.(10)
In wake of the Coronavirus pandemic, these systemic problems with the IHS have worsened. While the IHS was never properly equipped to respond adequately to a virus of such scale, it became starkly clear that there were no emergency protocols in place when the event occurred. This exacerbated the number of unnecessarily deaths and infection rates among Native Americans living on reservations and tribal lands, exposing a centuries long issue between indigenous communities and the US Government’s neglect. Tribal officials were forced to take matters into their own hands due to the systemic weakness of the IHS. Entire communities were often left to fend for themselves. Many of those falling sick with the virus had underlying health issues that could further complicate treatment, and the poverty on many reservations created an additional problem. Hospitals waited months for protective equipment, some of which ended up being expired. Facilities had far too few beds and ventilators to handle the influx of patients. What we know now is that had tribal members waited for the Federal Government’s assistance, death rates would have certainly been worse than they already were.(11)
In truth, the IHS failed to tailor health guidance to the reality of life on poverty-wracked reservations and did nothing to collect information on hospitalizations, death rates, or testing to help tribes spot outbreaks and respond.(12) As a result, doctors and nurses at IHS hospitals were left to plead on social media for protective medical equipment and supplies while waiting for government assistance. Patients wanting to be tested or hoping for treatment were turned away due to lack of resources. Public health nurses were left to keep track of patients they were forced to turn away. Medical staff utilized their own funds to provide patients with medication and sometimes even food. Scores of people died waiting for treatment that never came. Residents resorted to rationing their limited supplies to assist the worst cases. When IHS facilities requested coronavirus tests from US government resources, many instead received body bags. Hospitals struggled to obtain protective equipment for medical workers and were often left to rely on donations from outside groups.
The IHS only contains a dozen service regions across the United States, with each serving tribes in very specific locations or areas. It only has around 15,170 employees, most of whom work in the hospitals and clinics, and the entire system consists of about 26 hospitals, 56 health centers, and 32 health stations, with each ranging from 4 to 133 beds per facility. For example, the Navajo Nation, which is roughly the size of West Virginia and one of the IHS’ twelve service regions, runs 14 health care facilities in total on their reservation. There are 222 hospital beds available for the reservation’s 170,000+ residents, which also serves another 74,000 Native Americans who live off the reservation. This ratio of hospital beds to population is about a third of the figure for the general population of the United States, so it is no wonder that hospital beds in the midst of the pandemic were no place to be found.(13) It also needs to be pointed out that during the pandemic’s initial stages, the IHS was without permanent leadership---further delaying crucial assistance.
In 2003-2004, the United States Commission on Civil Rights put out a report outlining the disparities concerning health care for Native Americans. Years later, another report was issued in 2018 with one following in 2020 during the Coronavirus outbreak. Unfortunately, most of the findings from the 2003-2004 report either stayed the same or worsened over the sixteen to seventeen years that followed.(14) We can easily surmise that the entire situation with funding to the IHS has obviously worsened and been exacerbated due to both population increases and a persistent lack of funding allocation. With the current lack of needed health care programs and initiatives for Native Americans from the Department of Health and Human Services to the IHS, we can clearly see that this continues to be a shameful human rights issue. With only 6 billion dollars allocated to the IHS out of the $1.3 trillion distributed to the Department of Health and Human Services annually, which is only 0.5%, it is obvious that health care advocacy for our indigenous populations is not, and never has been, a national priority. Obviously, quantifiable goals need to be set that focus explicitly on chronic-illness reduction, and associated measures need to be implemented and then closely monitored. A strong investment in public health and illness prevention is essential to changing the situation concerning severe chronic diseases and illnesses impacting Native Americans utilizing IHS facilities and clinics. The U.S. government has a moral and legal responsibility to its Native populations to address these multiple crises in health equity that it is solely responsible for and has historically created. Not doing so and ignoring these multiple issues is nothing short of systemic genocide. Something must be done.
Meera Vashisht is a Sophomore at Yale University in Ezra Stiles College
Citations
1. Bergman A.B., Grossman D.C., and Erdrich A.M., “A Political History of the Indian Health Service,” The Millbank Quarterly, Vol. 77. No. 4, 1999.
2. Pearson, J. Diane, “Lewis Cass and the Politics of Disease: The Indian Vaccination Act of 1832.” Wicazo Sa Review. 18: pp. 9-18.
3. Bloch Rubin, Ruth. “Public Health, Indian Removal, and the Growth of State Capacity, 1800-1850 (PDF). American Politics Workshop. University of Wisconsin-Madison.
4. The Transfer Act, Pub L No. 83-568 (1954). Google Scholar
5. McChristian, Douglas C., “Fort Laramie: Military Bastion of the High Plains.” University of Oklahoma Press, 2017.
6. Bishop, William W. “New United States Policy Limiting Sovereign Immunity.” The American Journal of International Law. 47 (1): pp. 93-106.
7. Lee, Jr., Robert D. “Federal Employees, Torts, and the Westfall Act of 1988.” Public Administration Review. 56 (4): pp 334-340, 1996.
8. The Utah Department of Health. Utah Health Disparities Summary 2009. American Indians Chronic Conditions, Reproductive Health, Injury and Lifestyle Risk. 2009.
9. Adakai M., Sandoval-Rosario M., Xu F., Aseret-Marygoats T., Allison M., Greenlund K.J., et al. “Health Disparities Among American Indians and Alaska Natives.” Arizona, 2017.
10. Jacobs-Wingo J. L., Espey D. K., Groom A. V., Phillips L. E., Haverkamp D. S. “Causes and Disparities in Death Rates Among Urban American Indian and Alaska Native Populations,” 1999–2009. American Journal of Public Health. 2016, 106: pp. 906–914.
11. Kakol M, Upson D, Sood A. “Susceptibility of Southwestern American Indian Tribes to Coronavirus Disease 2019 (COVID‐19).” J Rural Health. 2020.
12. Navajo Department of Health. “Navajo Nation COVID-19 Dashboard.” 2021. Available: https://www.ndoh.navajo-nsn.gov/COVID-19/Data
13. Centers for Disease Control and Prevention. “Tribal Reservations.” 2018. Available: https://www.cdc.gov/tribal/tribes-organizations-health/tribes/reservations.html
14. U.S. Commission on Civil Rights. “Broken Promises: Continuing Federal Funding Shortfall for Native Americans.” 2018. Available: https://www.usccr.gov/pubs/2018/12-20-Broken-Promises.pdf
